LAW REVIEW 1134
Protection against Discharge after Reemployment
By Captain Samuel F. Wright, JAGC, USN (Ret.)
to Federal Government
to Part-Time, Temporary, Probationary, and At-Will Employment
Protection Against Discharge, Except Cause
USERRA and other Laws/Policies
Q: I am a Commander in the Navy Reserve Nurse
Corps and a member of ROA. I was working
as a nurse at a state hospital when I was called to active duty for 20 months,
from mid 2008 to early 2010. Instead of
seeking reemployment in my state job, I took a federal job as a nurse for the United States Department of Veterans Affairs (VA). This was my first federal civilian job.
While employed as a VA
nurse, I got a lot of hassle from my direct supervisor about my Navy Reserve
drill weekends and annual training and about the possibility that I might again
be called to active duty for a year or more.
After I was on the job for only 11 months, I was summarily fired. I was told that I have no appeal rights
because I had not worked for the Federal Government for at least a year at the
time of the firing.
I read somewhere that the
Uniformed Services Employment and Reemployment Rights Act (USERRA) provides
that a person returning from active duty cannot be fired, except for cause,
within one year after starting the job.
Is that correct? Does USERRA
apply to a person like me? Where do I go
enacted USERRA in 1994, as a long-overdue rewrite of the Veterans’ Reemployment
Rights Act, which goes back to 1940.
USERRA is codified in title 38 of the United States Code, sections 4301
through 4335 (38 U.S.C. 4301-4335).
USERRA applies to essentially all employers in this country, including
the Federal Government, the states and their political subdivisions, and
private employers, regardless of size.
Only religious institutions, Indian tribes, foreign embassies, and
international organizations (United Nations, World Bank, etc.) are exempt from
USERRA within the United States.
As I explained in Law Review
0766 and other articles, USERRA gives you the right to reemployment with your
pre-service employer if you meet five eligibility criteria:
- You must have left a position of civilian
employment for the purpose of performing voluntary or involuntary uniformed
- You must have
given the employer prior oral or written notice.
- Your cumulative
period or periods of uniformed service, relating to the employer relationship
for which you seek reemployment, must not have exceeded five years. All involuntary service and some voluntary
service are exempted from the computation of your five-year limit.
- You must have
been released from the period of service without having received a punitive (by
court martial) or other-than-honorable discharge.
- You must have
made a timely application for reemployment with the pre-service employer, after
release from the period of service.
After a period of more than 180 days of service, you have 90 days to
apply for reemployment. See 38
U.S.C. 4312(e)(1)(D). Shorter deadlines
apply after shorter periods of service.
When you were released from
active duty in early 2010, you could have applied for reemployment in your
state job, and if you had made a timely application you would have had the
right to reemployment. It appears that
you already met the first four criteria, and you had it in your power to meet
the fifth, but instead of applying for reemployment with the state you chose to
apply for and accept a federal civilian job.
Here is the USERRA provision
about protection against discharge after reemployment: “A person who is reemployed by an employer
under this chapter shall not be discharged from such employment, except for
cause—(1) within one year after the date of such reemployment, if the
person’s period of service before the reemployment was more than 180 days; or
(2) within 180 days after the date of such reemployment, if the person’s
period of service was more than 30 days but less than 180 days.” 38 U.S.C. 4316(c) (emphasis supplied).
Section 4316(c) did not apply
to your VA employment, because you were not reemployed by the VA after
leaving a VA job for service and then returning to the VA following
service. If you had sought reemployment
in the state job after leaving active duty in 2010, you would have had the
protection of section 4316(c) in the state job.
Section 4316(c) does not
apply to your situation with the VA, but you do have rights under section
4311(a), which provides: “A person who
is a member of, applies to be a member of, performs, has performed, applies to
perform, or has an obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention in employment, promotion,
or any benefit of employment by an employer on the basis of that membership,
application for membership, performance of service, application for service, or
obligation.” 38 U.S.C. 4311(a) (emphasis
Firing you at least arguably
violated section 4311(a). The VA denied
you retention in employment on the basis of your performance of service
(drill weekends, annual training, etc.) and your obligation to perform future
service (a possible second recall to active duty).
Q: What is the forum for adjudicating a claim of
this nature? Am I permitted to sue the
VA in federal court?
the employer against which you seek to bring a USERRA complaint is a federal
agency (the VA), the Merit Systems Protection Board (MSPB) has exclusive
jurisdiction here. See 38 U.S.C.
4324. You cannot sue the VA in federal
Q: What is the MSPB? How are MSPB cases adjudicated? Can the MSPB decision be appealed?
MSPB is a quasi-judicial federal agency that was created by the Civil Service
Reform Act of 1978 (CSRA). The MSPB has
three members, each of whom is appointed by the President with Senate
confirmation. The MSPB adjudicates cases
involving federal employees and federal agencies (as employers) under many
different laws, not just USERRA.
When Congress enacted USERRA
in 1994, it expanded the jurisdiction of the MSPB in a significant way, with
respect to USERRA. A federal employee,
former federal employee, or unsuccessful applicant for federal employment who
non-frivolously alleges a USERRA violation is entitled to MSPB adjudication of
the USERRA issue, under section 4324 of USERRA.
An Administrative Judge (AJ)
of the MSPB initially hears the case.
The AJ conducts a hearing, which is much like a trial in federal
court. The AJ makes findings of fact and
conclusions of law, much as a federal judge would do. If neither party appeals from the AJ’s
determination, the AJ decision becomes the decision of the MSPB. An appeal from an AJ decision is heard by the
MSPB itself, here in Washington. The
MSPB’s decision can be appealed to the United States Court of Appeals for the Federal
Circuit, a specialized federal appellate court here in our nation’s capital.
Q: How do I get my case to the MSPB?
provides two ways for your case to get to the MSPB. Under section 4322 (38 U.S.C. 4322), you can
file a formal complaint against the VA, in writing, with the Veterans’
Employment and Training Service of the United States Department of Labor (DOL-VETS). That agency will conduct
an investigation of your complaint. If
the DOL-VETS investigation seems to indicate that your
complaint has merit, the agency will attempt to persuade the VA to come into
compliance with USERRA. Upon completion
of the investigation, DOL-VETS will advise you of the results of its
investigation and about your right to request referral of the case to the
United States Office of Special Counsel (OSC).
Upon your request, DOL-VETS must refer your case to OSC, even if DOL-VETS believes that your case lacks merit. See 38 U.S.C. 4324(a)(1). DOL-VETS can refer your case with a negative recommendation, but it cannot
refuse to refer the case. If OSC is
reasonably satisfied that your claim has merit, OSC can initiate the case in
the MSPB, on your behalf, and at no cost to you. See 38 U.S.C. 4324(a)(2)(A). If OSC decides not to represent you in the
MSPB, it will notify you in writing of that decision, within 60 days after
receiving the referral from DOL-VETS. See
38 U.S.C. 4324(a)(2)(B). If OSC
notifies you that it will not represent you, you can initiate the MSPB action
yourself. See 38 U.S.C.
Q: Am I required to “exhaust remedies” through
DOL-VETS and OSC before initiating my action in the MSPB?
A: No. If you want free legal representation by OSC,
you must go through DOL-VETS. If you
choose not to complain to DOL-VETS, you can initiate your action in the MSPB
directly. See 38 U.S.C.
4324(b)(1). You do not need a “right to
sue” letter from DOL-VETS or OSC before initiating your action in the MSPB.
Q: Am I permitted to represent myself in an MSPB
but I do not recommend that course of action.
Abraham Lincoln said, “A man who represents himself has a fool for a
client.” And the law is much more
complicated today than it was in Lincoln’s lifetime. An MSPB hearing is almost as formal as a
trial in federal court. If you do not
know how to prove facts, you will probably mess this up. Proving facts is a complex skill that
requires years of legal experience to do well.
You only get one chance to prove the facts for which you have the burden
of proof, and that is in the hearing before the AJ. In the appeal to the MSPB or the Federal
Circuit, you do not get a new opportunity to prove facts, except in the most
Q: How do I find a lawyer to represent me? I don’t have a lot of money to pay up front
for legal representation.
you proceed with private counsel and prevail, the MSPB may, in its discretion,
award you attorney fees, expert witness fees, and other litigation
expenses. See 38 U.S.C.
There are only a handful of
attorneys around the country who know much about USERRA. Contact me, and I will refer you to one of
them. My e-mail is SWright@roa.org.
Q: The VA personnel office insists that my
firing is unreviewable by the MSPB because I had not worked for the Federal
Government for at least a year at the time of the firing. Is the personnel office correct?
personnel office is wrong. As a general
rule, a fired federal employee cannot appeal the firing to the MSPB unless the
employee has more than one year of federal civilian service, but your case is
different, because of section 4324 of USERRA.
If you are claiming that you were fired because of your performance
of uniformed service and obligation to perform service, in violation of
USERRA, you have the right to take your case to the MSPB and get the MSPB to
adjudicate your USERRA claim, although you have less than a year of federal
employment. See Jasper v. United
States Postal Service, 73 MSPR 367 (1997) and Petersen v. Department of
Interior, 71 MSPR 227 (1996).
I discuss this issue in detail
in Law Review 108 (January 2004). I
invite your attention to www.roa.org/law_review. You will find
more than 700 articles about USERRA and other laws that are particularly
pertinent to those who serve our country in uniform. You will also find a detailed Subject Index
and a search function, to facilitate finding articles about very specific
Q: Is there a time limit as to when I can bring
such a complaint to DOL-VETS or such an action in the MSPB?
There is no statute of limitations under USERRA. See 38 U.S.C. 4327(b).
But I strongly recommend don’t
sleep on your rights. You have the
burden of proof under section 4311(a).
The longer you wait, the more difficult it will become to make your
case. Memories will dim and potential
witnesses will die or otherwise become unavailable. Records will be lost. It serves your interest to bring your
complaint sooner rather than later.
Q: In my MSPB action, will
I need to prove that the VA fired me solely because of my Navy Reserve
obligations? Or is it sufficient for me
to prove that the Navy Reserve was one of the reasons why the VA fired
latter. “An employer shall be considered
to have engaged in actions prohibited—(1) under subsection (a), if the person’s
membership, application for membership, service, application for service, or
obligation for service in the uniformed services is a motivating factor in
the employer’s action, unless the employer can prove that the action
would have been taken in the absence of such membership, application for
membership, service, application for service, or obligation for service.” 38 U.S.C. 4311(c)(1) (emphasis supplied).
Q: The personnel office concedes that my direct
supervisor, during my VA employment, made numerous statements expressing
annoyance at me because of my Navy Reserve obligations. The personnel office says that the supervisor
should not have made these statements, but the statements are irrelevant
because my direct supervisor did not make the decision to fire me. According to the personnel office, the
director of the VA regional medical center (a member of the Senior Executive
Service) made the firing decision, and there is no evidence that he ever made
anti-military statements. What do you
think about this?
United States Supreme Court very recently (March 1, 2011) decided a USERRA case
that is very relevant to this discussion.
I invite your attention to Staub v. Proctor Hospital, 562 U.S.
____ (2011). I discuss the implications
of Staub in detail in Law Review 1122.
As a result of that decision,
you have a strong claim of discrimination under USERRA, as your direct
supervisor no doubt started the process that led to your firing. During your 11 months of VA employment, your
direct supervisor probably put negative notes about your performance in your
personnel record. Those negative reports
may be tainted by the supervisor’s anti-military animus against you. The director probably relied on the
supervisor’s reports about your performance when he decided to endorse the
recommendation to fire you. Thus, the
personnel office is wrong when it says that the immediate supervisor’s
anti-military statements are irrelevant.
OSC is a small federal agency created by the CSRA in 1978.
I am aware of at least two cases wherein DOL-VETS
referred a case to OSC with a negative recommendation. OSC conducted its own investigation and
determined the case had merit. OSC
proceeded in the face of the negative DOL-VETS
recommendation and obtained relief in the MSPB.
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